IMPORTANT POINT
Once execution of cheque admitted by accused, he first rebut presumption arising out of S. 139 of NI Act.

U. V. Bakre, J.—Heard Ms. Monteiro, learned Counsel for the petitioner and Mr. Bhobe, learned Counsel for the respondent No. 1.

2. By order dated 12.2.2015, it was made clear to both the parties that the revision application shall be heard finally at the stage of admission itself.

3. Rule. Rule made returnable forthwith. Learned Counsel for the parties waive service of notice after admission. Heard finally.

4. By this revision application, the petitioner has challenged the judgment and order dated 29.1.2015 passed by the learned Sessions Judge, Panaji in Criminal Appeal No. 34/2014 and the judgment and order dated 15.3.2014 passed by the learned Chief Judicial Magistrate, Panaji in Criminal Case No. 800/OA2007A.

5. The respondent No. 1 was the complainant in the said Criminal Case, whereas the petitioner was the accused therein. Parties shall hereinafter be referred to as per their status in the said Criminal case.

6. The complainant had filed the said case against the accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act, for short). Case of the complainant was as follows: The accused had borrowed Rs.22,500 from the complainant for business purpose and towards repayment of the same, he had issued a cheque bearing No. 515354 dated 6.4.2007 for the said amount of Rs.22,500 drawn on Development Credit Bank Ltd., Panaji Branch. The complainant presented the said cheque to the Mapusa Urban Co-operative Bank of Goa Ltd., Sankhali Branch. By letter dated 31.7. 2007, accompanied with a memorandum of Development Credit Bank Ltd., Panaji Branch dated 30.7.2007, the complainant was informed that the said cheque was dishonoured for reason “funds insufficient”. The complainant, thereafter, telephonically informed the accused that the cheque was dishonoured, but the accused did not listen nor he did make any efforts to pay to the complainant the said amount. Thereafter, the complainant, through her Advocate, issued a legal notice dated 14.8.2007 by registered post AD to the accused. The said notice was duly received by the accused, but the accused neither replied to the same nor complied with the same. Hence, the complaint.

7. The complainant examined herself before the learned Chief Judicial Magistrate (C.J.M.). She produced the cheque, cheque return memo and legal notice along with A.D. Card. The statement of the accused under Section 313 of Criminal Procedure Code (Cr.P.C.) was recorded by the learned C.J.M. The accused did not examine any witness in defence.

8. Upon consideration of the entire material on record and upon hearing the arguments from the learned Counsel for both the parties, the learned C.J.M. held that the complainant established her case beyond reasonable doubt and that the accused had failed to rebut the presumption under Section 139 of the N.I. Act which was in favour of the complainant. The accused was held guilty, convicted and sentenced for offence under Section 138 of the N.I. Act to undergo imprisonment for six months and to pay an amount of Rs.40,000 to the complainant as compensation within two months from the date of the order. In default of payment of compensation, the accused was directed to undergo imprisonment for further period of three months. Aggrieved with the judgment, order and sentence of the learned C.J.M., the accused filed Criminal Appeal No. 34/2014. The learned Sessions judge, by judgment and order dated 29.1.2015, held that the appeal was devoid of merit and there was no material to interfere with the findings of the learned C.J.M. The appeal was rejected. The accused is, therefore, before this Court.

9. Ms. Monteiro, learned Counsel for the accused, submitted that the accused used to take delivery of milk products (lassi) from the complainant, but he had never taken any money as hand loan from the complainant. She submitted that on account of the said business of milk, the accused had given two blank cheques to the complainant, but s